State ex rel. Veskrna v. Steel

296 Neb. 581

894 N.W.2d 788

STATE of Nebraska EX REL. Les W. VESKRNA, M.D., appellee and cross-appellant,

v.Corey R. STEEL, State Court Administrator, appellant and cross-appellee.

No. S-16-118.

Supreme Court of Nebraska.

Filed May 5, 2017.

Douglas J. Peterson, Attorney General, David A. Lopez, L. Jay Bartel, and Leslie S. Donley, Lincoln, for appellant.

L. Steven Grasz and Kamron T. Hasan, of Husch Blackwell, L.L.P., Omaha, for appellee.

Shawn D. Renner, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., Lincoln, and Eugene Volokh, of Scott & Cyan Banister Amicus Brief Clinic, UCLA School of Law, for amicus curiae Media of Nebraska, Inc.

Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ., and Riedmann, Judge.

Per Curiam.

I. NATURE OF CASE

Corey R. Steel, the State Court Administrator, appeals from a writ of mandamus ordering the disclosure, pursuant to Nebraska's public records statutes, of Judicial Branch Education (JBE) records.¹ Steel argues that the unwritten policy of the JBE advisory committee (Committee) is that all JBE records are confidential and that such policy falls under the exception to the "public records" definition, which is allowed "when any other statute expressly provides that particular information or records shall not be made public."² Alternatively, Steel relies on the concepts of separation of powers and the judicial deliberative privilege. He asserts that it is for the Committee, not the Legislature, to determine what JBE records are appropriate for public disclosure and that the judiciary's essential functions require the confidentiality of JBE records. We affirm.

II. BACKGROUND

1. COMPLAINT

Les W. Veskrna filed a complaint for a writ of mandamus requiring Steel, in his capacity as State Court Administrator, to provide copies or allow inspection of continuing education records for the court since July 1, 2012, pertaining to child custody and parenting time. Veskrna alleged that such records are not protected by any privilege derived from the court's inherent powers or otherwise shielded by virtue of any other inherent constitutional power of the judicial branch and that public access to JBE records does not infringe on any power essential to the existence, dignity, and functions of the court.

2. REQUEST AND RESPONSE

Attached to the complaint was Veskrna's email to Steel requesting:

all records in any form, including PowerPoint presentations, handouts, notes, video and audio recordings, correspondence, memoranda, email and other communications, regarding judicial education programs since July 1, 2012 on child custody and parenting time. This request includes records, including email and other communications, regarding the selection of presenters, how those presenters were selected, contracts with presenters and other outside parties, and all training materials.

Veskrna also attached the email response from Steel denying the request:

The Nebraska Supreme Court established [JBE] and adopted rules governing such education, Neb. Ct. R. §§ 1-501 et seq., pursuant to its administrative, supervisory and inherent authority over the state's judicial system. See, Nebraska Constitution, Article V, § 1. Internal court records pertaining to the JBE system are under the exclusive control of the judiciary. As the Nebraska Attorney General has recognized, in Neb. Op. Atty. Gen. No. 04030, every court has power over its own records and files; even if the Nebraska Public Records Act applies to certain judicial records, "the courts may possibly take the position that any obligation which they have to produce records ... under the [Act] is subject to their supervisory power over their own records and files."

Judicial education was instituted by the Supreme Court to protect the integrity of the judicial system for the benefit of the general public. Neb. Ct. R. § 1-501 expresses that intent: "It is essential to the public that judges ... continue their education in order to maintain and increase their professional competence, to fulfill their obligations under the Nebraska Revised Code of Judicial Conduct, and to ensure the delivery of quality judicial services to the people of the State of Nebraska."

Additionally, judicial education is closely intertwined with the deliberative and decision-making process employed by a judge in fulfilling his or her duty to independently decide legal cases. The independence of the judiciary, which is crucial to maintaining the public's trust, is strengthened by the protection of deliberations between judges and those who assist the judge in the analysis of legal issues, including staff and educators who enhance a judge's knowledge base. For these reasons, administrative records associated with judicial branch education are not public records subject to release under the Nebraska Public Record[s] Act.

3. STEEL'S ANSWER TO COMPLAINT

In his answer to Veskrna's complaint, Steel denied that the "Nebraska Public Records Act" was " ‘on its face’ " applicable to the judicial branch. Steel also denied Veskrna's allegation that JBE records are not protected by any privilege derived from the court's inherent powers or otherwise shielded by virtue of any other inherent constitutional power of the judicial branch. He denied the allegation that public access to JBE records does not infringe on any power essential to the existence, dignity, and functions of the court. Steel asserted that records pertaining to judicial education were not " ‘public records' " as defined by § 84-712.01. Steel generally alleged that Veskrna did not have a clear right to receive records pertaining to judicial education and that Steel had no corresponding clear duty to produce such records.

4. SUMMARY JUDGMENT

Veskrna and Steel filed cross-motions for summary judgment. At the hearing on the motions, Veskrna clarified that he did not request records of the judges' attendance at the JBE programs, nor their ratings of the presenters. Veskrna wished to have access only to what seminars were presented, who the presenters were, and what materials were presented.

(a) Veskrna's Arguments

Veskrna asserted that the requested JBE records fell under "public records" as defined by the public records statutes and that no statutory exception applied. Section 84-712.01(1) defines public records in part:

Except when any other statute expressly provides that particular information or records shall not be made public, public records shall include all records and documents, regardless of physical form, of or belonging to this state, any county, city, village, political subdivision, or tax-supported district in this state, or any agency, branch, department, board, bureau, commission, council, subunit, or committee of any of the foregoing.

Veskrna pointed out that the public records statutes facially apply to the judicial branch and that these statutes have been recognized as applicable to the judicial branch in Nebraska case law.

Veskrna asserted that the JBE records requested were not privileged under the deliberative process privilege but did concede that the judiciary can withhold documents under the deliberative process privilege. He asserted that although this court has inherent powers under article V, § 1, of the Nebraska Constitution, including the inherent power to restrict public access to certain records, records which are administrative in nature cannot be withheld. Veskrna argued that while "chambers records" and "case records" might traditionally be protected from access, "administrative records" are not.³ And, Veskrna asserted that allowing public access to JBE records does not unduly encroach upon the judiciary's core functions, noting that mandatory judicial education was only recently adopted in 2004. Finally, Veskrna argued that the open courts provision of the Nebraska Bill of Rights supported disclosure.

(b) Steel's Arguments

Steel argued that the Committee's informal policy and practice that all JBE records be kept confidential falls under the exception of § 84-712.01(1). Steel argued that JBE records fell under the exception to the definition of public records, because such confidentiality is "authorized" by Neb. Rev. Stat. § 24-205.01 (Reissue 2016) and Neb. Ct. R. § 1-512(A) (rev. 2013).

Section 24-205.01(2)(a) states that the Committee may "[d]evelop for review by the Supreme Court standards and rules and regulations addressing such issues as the criteria for mandatory education for judges, criteria for approval of qualified activities, reporting requirements, sanctions for noncompliance, exemptions, and confidentiality of records." Steel contends the language "confidentiality of records" is an express recognition by the Legislature that this court may deem JBE records confidential. Section 24-205.01(2)(b) states that the Committee may "[d]evelop for review by the Supreme Court standards and policies for education and training of all nonjudge judicial branch employees, including criteria for approval of qualified activities, reporting requirements, sanctions for noncompliance, and exemptions."

Section 1-512(A) states that the advisory committee shall have authority to "[d]evelop and review standards and administrative rules addressing such issues as the criteria for mandatory education for judges, criteria for approval of qualified activities, reporting requirements, sanctions for noncompliance, exemptions, and confidentiality of records for approval of the Court and incorporation into this rule." Steel did not claim that the Committee had, in fact, developed such rules. And Steel acknowledged that our court has not yet adopted rules governing the confidentiality of JBE records.

Steel also argued that given separation of powers principles, the Legislature cannot intrude upon the Nebraska Supreme Court's express and inherent powers that are being exercised in its control over public access to JBE records. In this regard, Steel cited to article II, § 1, and article V, § 1, of the Nebraska Constitution. Neb. Const. art....